Court says Savannah River permit violated law

Tuesday, November 06, 2012

The South Carolina Supreme Court has ruled that a state agency violated the law when it negotiated an agreement before issuing a key permit needed to deepen the Savannah River.
The Supreme Court’s decision last Friday comes just one week after Jo-Ellen Darcy, head of the Army Corps of Engineers' civil works programs, approved plans to deepen the river from 42 feet to 47 feet. The so-called Savannah Harbor Expansion Project is a keystone project for the Georgia Ports Authority and the Port of Savannah.
GPA Executive Director Curtis Foltz noted last week that "the Corps’ decision is a crucial step for a
project more than a decade in the making. It is a leap
forward for America’s global competitiveness.”
The divided South Carolina court held (4-1) that South Carolina’s Department of Health and Environmental Control (DHEC) board violated a state law when it approved a water quality permit required under section 401 of the federal Clean Water Act (CWA).
Four of the justices said that by issuing the decision DHEC had violated a law that established a separate body called the Savannah River Management Commission and gave it authority “to represent this state in all matters pertaining to the navigability, depth, dredging, wastewater and sludge disposal, and related collateral issues in regard to the use of the Savannah River as a waterway for ocean-going container or commerce vessels.”
The court noted that on Sept. 30, 2011, the DHEC had initially issued a notice of decision proposing to deny the certification because a staff assessment had determined that the SHEP did not meet South Carolina’s water quality standards, but that subsequently the DHEC staff, Army Corps of Engineers and the Georgia Ports Authority “negotiated and entered into an agreement addressing the grounds for denial identified by DHEC staff as detailed in the assessment.”
That was followed on Nov. 15, 2011, by the DHEC board issuing the section 401 certification.
Three of the justices went further and said “because the board's decision incorporated the statutorily prohibited agreement, we further hold that the staff denial of the certification is now the final agency decision for purposes of contested case review.”
The decision by the DHEC to grant the permit caused a political furor among some supporters of the Port of Charleston and opponents of South Carolina Gov. Nicki Haley. A Website Fitsnews and the and the television program The Savage Report dubbed the decision the “Savannah River Sellout.”
Darcy addressed the litigation over the South Carolina DHEC permit in her record of decision, saying she was seeking an exemption under subsection 404(r) of the Clean Water Act (CWA) “in order to prevent inappropriate delays to this project due to pending litigation. Therefore, when Congress authorizes this project or next appropriates funds for construction after receipt of this FEIS (federal environmental impact statement), it would be providing an exemption from section 401 of the CWA.”
The Southern Environmental Law Center, which had challenged South Carolina DHEC’s authority to issue the permit on behalf of several environment groups - the Savannah Riverkeeper, South Carolina Coastal Conservation League, South Carolina Wildlife Federation, and Conservation Voters of South Carolina - said the Supreme Court decision "upholds the rule of law and ensures that the severe damage that this project will visit on South Carolina will be objectively reviewed. The result of the decision is to reinstate the initial decision by professional DHEC staff, which denied a water quality certification for the project because of its unacceptable environmental impacts."
On Monday, a U.S. District Court issued an order in a related case.
In that lawsuit, The Savannah Riverkeeper, South Carolina Coastal Conservation League, South Carolina Wildlife Federation, sued the Army Corps and the Georgia Ports Authority had intervened on the side of the Army Corps.
The district court said that while the South Carolina Supreme Court decision "resolves the state governmental authority issue," it added "these developments which may both clarify some issues and raise new and difficult legal questions, suggest that this may be a propitious moment for the parties to sit down and attempt to resolve through mediation these complex and difficult issues."
It has appointed former South Carolina Congressman John Spratt and U.S. Magistrate Judge Bruce Hendicks as mediators.
The court also ordered the Corps of Engineers to file with it all formal submissions it has made to Congress regarding its intention to seek a federal exemption from state environmental permitting requirements regarding SHEP and to file within 10 days a report regarding federal appropriations for SHEP. - Chris Dupin